If you ask everyone the same question, it's not unequal treatment — even if only one bidder has to adjust
The Council of State rejects Neovision's extreme urgency application against the award to Ecubel of refurbished laptops for Liège provincial schools because the Province could invoke article 76 §5 of the Royal Decree of 18 April 2017 to allow Ecubel to correct its offer — provided it asked all bidders the same clarification question simultaneously, which it did.
What happened?
The Province of Liège sought to buy refurbished laptops and tablets for its provincial secondary and higher education students, fully subsidized by the Wallonia-Brussels Federation up to €136,020 incl. VAT (€112,413.22 excl. VAT). The contract was split into 9 lots — one per school — and awarded through negotiated procedure without prior publication. Because the subsidy was fixed, the contracting authority set the price per lot; the attribution criteria were therefore not price but three other elements: number of pieces (40 points), warranty period (40 points) and delivery time (20 points). Four firms submitted offers, including Neovision (lots 2-9) and Ecubel (all lots). After the opening on 30 May 2024, the Province noticed that Ecubel's offer had a problem: 37 months warranty for computers but with a reservation — only 12 months on the battery. Other bidders had simply specified one warranty period. On 6 June 2024, the authority simultaneously sent each bidder an email with a question. To Ecubel: 'please confirm and set, without reservation, the warranty period for computers covering the complete material'. To Neovision, ESI and Priminfo: 'please confirm that your warranty covers the full material, or propose a new period that does'. The other three simply confirmed; Ecubel revised its computer warranty from 37 to 25 months without reservation. On 28 June 2024, the provincial college awarded lots 2-9 to Ecubel — with an average point difference of less than one point versus Neovision. On 19 July 2024, Neovision filed an extreme urgency application with two pleas covering six grievances. The Council of State rejected all of them. On equality: the question was sent simultaneously to all four bidders under the banner of 'fair treatment'. That only Ecubel had to change its offer is not a breach, because the others did not need to. On regularization: article 76 §5 of the Royal Decree of 18 April 2017 explicitly allows correction of even substantial irregularities for contracts below the European threshold through negotiated procedure. On the specifications: Neovision cannot point to where the specifications formally required a single warranty period covering all material. On motivation: in a negotiated procedure without prior publication, motivation can be concise. On price verification: the premise that reducing the warranty should have led to an increase in the number of pieces is not established — a shorter warranty does not automatically mean lower quality. Extreme urgency rejected, costs reserved.
Why does this matter?
This ruling is instructive for anyone working with negotiated procedures without prior publication below the European threshold. Article 76 §5 of the Royal Decree of 18 April 2017 gives contracting authorities much more flexibility here than in open or restricted procedures: even substantial irregularities can be regularized. The key to compliance with the equality principle is not that everyone is treated equally in outcome, but that everyone gets the same clarification question at the same time. For bid managers: if a competitor was allowed to adjust 'at the last minute' and you want to challenge that, first check whether the authority sent you a similar email. If yes, your case is weak. The ruling also confirms that specifications that do not explicitly formulate a uniform requirement cannot be read more strictly afterwards than they literally state.
The lesson
Before attacking a competitor who was allowed to amend their offer after opening: check which procedure it was. In a negotiated procedure without prior publication below the European threshold, article 76 §5 of the Royal Decree of 18 April 2017 explicitly allows regularization — even of substantial irregularities. Then check whether only that competitor got a clarification question, or everyone got the same email — the latter effectively excludes an equality breach. As contracting authority: when you want one bidder to clarify, send the same question simultaneously to all other bidders under the banner of 'fair treatment' — this is the safest route.
Ask yourself
As contracting authority: do your specifications explicitly state that the warranty must cover all material, or do you leave that implicit? If you discovered that one bidder made a reservation — did you send the same question to all other bidders at the same time? As bidder: do you know the regime of art. 76 §5 (negotiated procedure below European threshold) versus §3 (open/restricted)? Was the clarification question to you identical to the one sent to your competitor?
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →